Author: TSA Press

Josh Blackman wants conservative justices to stop apologizing for “socially conservative rulings,” but what if, and hear me out, they stop making social/political rulings entirely and instead stick to just legal decisions?

Last Thursday, the Supreme Court decided Jones v. Mississippi. The question before the court in Jones was “[w]hether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.” If you are familiar with the court’s recent precedent in this area, you would be forgiven for having expected the Court to answer this question in the affirmative. After all, in 2005 the Court held that the Eighth Amendment forbid the imposition of the death penalty on juveniles. In 2010, the Court held that life without parole could not be imposed on juveniles for crimes other than homicide. More importantly, as it relates to the Jones case, in 2012 and 2016, the Court held that life without parole could not be imposed on juveniles except “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Although there was clear precedent here, you see that was then, a mere five years ago, and this is a new Court with a new supermajority of social conservatives.

In Jones, a majority on the Court declared that neither the Eighth Amendment nor past cases require judges “to make a separate factual finding of permanent incorrigibility” when sentencing a juvenile offender to life without parole. Never mind that, as quoted above, this was exactly what prior case law required. The thing about having ideological domination is that you don’t have to care what was said before, and you don’t have to care about trivial little things like stare decisis. There is conservative policy to be made here people, and case law saying the opposite cannot get in the way!

The reaction to the Jones decision was for the most part unsurprising. In a piece in Slate, Mark Joseph Stern described it as “one of the most dishonest and cynical decisions in recent memory.” Stern’s description appears tough to argue with. In fact, I have not seen anyone even try. In his concurrence in Jones, Justice Clarence Thomas was perhaps less harsh in tone than Stern but ultimately reached a similar conclusion that the Court was overruling precedent while disingenuously claiming to follow it by employing what Thomas called a “strained reading.”

It seems easy to say that such dishonesty by our nation’s highest court should be objectionable to everyone. But not Josh Blackman, who among other things, is a regular (and often brilliant in my opinion) contributor to the Volokh Conspiracy at Reason. To Blackman, the objectionable part about the majority opinion in Jones was the conservative justices appeared to be *gasp* apologizing for making a socially conservative ruling. I’ll let Blackman explain:

The very last paragraph of Justice Kavanaugh’s majority opinion suggests that other branches of the Mississippi government should help the defendant, Brett Jones:

Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come.

Why? Why is this section necessary? The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane.

Of note, nowhere does Blackman raise an objection to the Court’s dishonesty in pretending to follow precedent when in actuality it is overturning prior case law. In fact, in another piece, Blackman stated he was “not interested in debating” whether the majority had correctly applied prior applicable case law. It is a tad ironic, to say the least, for a legal commentator to tell a court to “stay in your lane” for appearing to apologize to those impacted by a decision while at the same time refusing to discuss the legal question of whether the opinion misrepresents prior case law. But there is something more revealing about Blackman’s objection.

Describing a legal decision as a “socially conservative ruling” to me gives away the game being played by the Court. Specifically, that this “Court” is primarily politically driven. Where the law is regularly being supplanted in favor of the Justices’ preferred social policy desires. Of course, I know the Supreme Court has always done this to some extent, but this new “Court” is going off the rails.

To maintain legitimacy, any court needs to be upfront in what they are doing. I can’t believe I am saying this, but Justice Thomas is right. The only acceptable approach for the Supreme Court in Jones was “to be patently clear” that the majority disagreed with prior case law. Instead, the Court chose to lie even though the lie was plain to see for all. A possible reason why the conservative majority was perhaps nervous about taking an honest position in Jones is all the recent performative hand-wringing by conservative justices about how they strictly apply the law instead of just doing what they would like.

As long as the dishonesty results in socially conservative policy desires though, don’t expect Blackman to be raising any objection. Unless the justices start apologizing to those who are being negatively impacted of course, because that’s not their lane, you see.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

There’s no denying that COVID-19 has greatly impacted the ways that most of the world works. Though Biglaw has largely thrived throughout the pandemic, there’s still been a wave of layoffs throughout the industry, as firms try to tweak their model to respond to industry changes. Now comes word that yet another Biglaw firm is readying their own round of layoffs.

Magic Circle firm Clifford Chance is reportedly looking at between 44 and 73 layoffs of staff members in its London office. According to Roll on Friday, the departments impacted will be those hardest hit by the move to work from home, spurred by COVID-19. As such, secretaries, those in document production, and mail room staff will be offered severance packages in a “hybrid voluntary/compulsory redundancy approach.” The firm is hopeful this will reduce “the number of compulsory redundancies needed.”

During the height of the pandemic, Clifford Chance avoided furloughs or layoffs, but now the firm says the time has come:

But now, said Regional Managing Partner Michael Bates, “Following a thorough review of our UK operations looking at the impact of Covid and accelerating technological change, we have identified some areas where we need to make changes”.

“Sadly, these proposals will also result in the departure of some of our valued colleagues. This is never an easy decision, and not one that we have taken lightly”.

“We have entered into a consultation with the affected teams, and will also be offering them a voluntary redundancy scheme. Throughout, we will seek to reach our final decisions in a fair and inclusive way that respects our people and reflects our culture. And we will do all that we can to support all of our colleagues as we move through the process”.

Best of luck to those who find themselves out of work.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

In case you’ve been too busy billing to realize, Thompson & Knight has been in the news recently. The firm is reportedly considering a merger with Holland & Knight. The combined firm would have nearly 1,600 lawyers across 30 offices, making it one of the largest law firms in the country. The potential merger is one of the largest announced in 2021 yet.

Holland & Knight, the firm’s prospective merger partner, announced special bonuses last week, and so did Thompson & Knight, which ranked 141st on the Am Law 200 with $217,856,000 gross revenue in 2019.

The firm, which “has always punched above its weight in quality and still does,” matched the bonus scale set by Davis Polk in March. Special bonuses will be available for eligible U.S. associates, and will be in addition to the firm’s annual bonuses that will be paid in March 2022. Here’s what the bonus scale looks like:

	Spring	Fall	Total
Class of 2020	$4,500	$7,500	$12,000
Class of 2019	$6,000	$10,000	$16,000
Class of 2018	$12,000	$20,000	$32,000
Class of 2017	$16,500	$27,500	$44,000
Class of 2016	$19,500	$32,500	$52,000
Class of 2015	$22,200	$37,000	$59,200
Class of 2014	$24,000	$40,000	$64,000

According to a representative from the firm, spring bonuses will be paid in June to those who are on track to meet or exceed 1900 annualized billable and creditable hours, while fall bonuses will be paid in November under the same criteria. At this time, we’re unsure if associates will receive an opportunity to be made whole if they catch up on their billable hours at a later time.

Congrats to everyone at the firm — on the bonuses and on the potential merger.

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

What mistake do I often see even senior lawyers at good firms make when taking depositions or trying cases?

These folks know that questions on direct examination should be open-ended and questions on cross should be leading. I see people err in those regards, of course, but I don’t typically see experienced, knowledgeable folks make those errors.

Here’s the error I see all the time:

Q: “You did not believe that the light was red, right?”

A: “No.” (And perhaps the witness is shaking his head while saying this.)

Or:

Q: “That is not your signature at the bottom of the document, right?”

A: “No.”

Everyone in the room understands that those “no” answers almost surely mean “yes.” The witness did not believe that the light was red, and the witness’ signature was not at the bottom of the document. But the double negative obscures this. It’s entirely conceivable that the “no” answers might in fact mean “no.”

The double negatives mean that the questions and answers are generally useless: The double negative obtained at deposition cannot be used on summary judgment because it’s ambiguous. Depending on what the video looks like, the double negative at deposition may not be useful for impeachment at trial. And the double negative at trial is similarly useless on appeal; the appellate panel, reading the transcript, will not be sure what the question and answer meant.

It’s true that the double negative conveys meaning in the moment: Everyone at the deposition or trial knows that the “no” answer means “yes.” That’s great — unless you were taking the deposition for a reason, such as setting up a summary judgment motion or creating useful material for impeachment at trial. And the ambiguity is fine at trial — so long as you win. If you happen to lose at trial, you don’t have the record you need for appeal.

It’s thus wrong to say, dismissively, as some do: “We all knew what the witness meant.”

That’s true. You and the others in the room when the testimony was taken did know what the witness meant. But understanding the witness in the moment was not the only reason you were taking the testimony.

Good lawyers fix the double negative problem in one of three ways:

First, if a good lawyer realizes that he or she inadvertently put a negative in the question and obtained a negative response, the lawyer will immediately correct the error: “I’m sorry. I asked you a bad question, so the answer was confusing. What I said in the preceding question was correct, right?”

That will elicit either a “yes” or a “what was the question again?” that’s an invitation to fix the error.

Second, some lawyers strip the negative out of the question. Thus:

Q: “Did you believe the light was red?”

Or:

Q: “Is that your signature at the bottom of the document?”

The answers to those questions will be not be ambiguous.

But some lawyers tremble at the thought of the questions I’ve just suggested:  “Herrmann, you idiot! ‘Did you believe the light was red?’ is not a leading question. If you ask an open-ended question on cross-examination, you’ll get your ass handed to you. You must be a terrible lawyer!”

If asking those questions causes you too much stress, then you could use a third approach. Some lawyers fix the double negative problem by phrasing the questions slightly differently.

Q: “You did not believe that the light was red. Is that statement correct?”

Or:

Q: “That is not your signature at the bottom of the document.’ Is that statement correct?”

Those questions are likely to elicit the necessary “yes” or “yes, that’s correct.”

“Creating a useful record” and “having a conversation” are two entirely different things. If you’re doing the former, do not mistakenly think that you’re doing the latter. Is that correct?

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

The last time Linklaters responded to market bonuses, the firm took two weeks longer than its peers to come to a decision and then didn’t even match. In a cryptic message, the firm promised bonuses on an increasing scale beginning at 1700 hours, though associates weren’t confident that billing 2000 hours would even net half the market bonus.

So while it may not surprise anyone that Linklaters took longer than the rest of the market to respond, it is welcome news that the firm fully matched the prevailing market this time around.

In an email circulated on Friday — you know how much we hate that — the firm called off a previously announced 5 percent bonus and replaced it with market-level bonuses.

The first installment will arrive June 30, while the second is expected to be paid at the same time as the eventual annual bonus. No word on hours requirements or catch-up provisions, so let’s hope that’s because there aren’t any restrictions — associates have been through enough over the past year.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

WASHINGTON: “My entire career, I’ve stood around a mapboard and the lawyer’s always right there,” said Gen. Mike Murray, who commanded troops in Afghanistan and Iraq. But in a highly automated future war of long-range missiles, swarming robots, and sensor jamming, warned the head of Army Futures Command, “you’re not going to have 30 seconds to stand around a mapboard and make those decisions.”

“Back when I was a brigade commander, even when I was commander of the Third Infantry Division in Afghanistan,” Murray recalled, “life and death decisions were being made just about every day, and it usually was around, either [a] mapboard or some sort of digital display.” Along with the staff officers for intelligence, operations and fire support, he said, one of a handful of “key people standing around that mapboard” was the command’s lawyer, its Staff Judge Advocate.

“The lawyer always got a say,” the general went on. “Is this is just a viable course of action, given the law of armed conflict?… Is this a legal response? And usually those discussions would take some time. I think in the future the opportunities to get people around the map board and have a detailed discussion — to include discussions about the legality of the actions you’re contemplating as a commander — will be few and far between.”

How will the Army solve this problem? Gen. Murray raised this question addressing a West Point-Army Futures Command conference on the law of future war, but he didn’t provide an answer. The speakers who followed didn’t seem to have an answer, either.

That’s a growing problem for the Army, which prides itself on meticulous adherence to federal law, Pentagon regulation, and professional military ethics, even in the most extreme conditions. And it’s particular tricky when artificial intelligence is involved, because AI often operates on timescales much faster than an individual human brain can follow, let alone the speed at which a formal staff process moves.

In its Project Convergence wargames last fall, Murray noted, the Army already used AI to detect potential targets in satellite images, then move that targeting data to artillery batteries on the ground in “tens of seconds,” as opposed to the “tens of minutes” the traditional call-for-fires process takes. But there was always a human in the loop, he emphasized, approving the computer-generated order before it could be transmitted to the guns.

That may not be possible with every type of target, however. Imagine, Murray said, a swarm of a hundred or more drones is inbound, flying low and jamming US sensors so it can evade detection until the last moment. “It within a human’s ability to pick out which ones need to be engaged first and then make 100 individual engagement decisions?” he asked. “Is it even necessary to have a human in loop, if you’re talking about effects against [i.e. attacking] an unmanned platform?”

For fast-moving, unmanned targets like drones or missiles, it may be necessary to take the human out of the loop and let the automation open fire against targets that meet pre-set criteria – “and in many ways we do this already,” Murray said. That’s true for the Counter-Rocket, Artillery, & Mortar (C-RAM) system used to protect many Forward Operating Bases, itself derived from the Navy’s Phalanx anti-missile gun. Automated fire is even an available mode on Patriot missiles, he said. (In fact, Patriot batteries on automated mode mistakenly killed three US and British pilots in 2003).

“Where I draw the line — and this is, I think well within our current policies – [is], if you’re talking about a lethal effect against another human, you have to have a human in that decision-making process,” Murray said. That’s the model used at Project Convergence last fall. And it’s official Defense Department policy.

Machines and humans working together will be slower than autonomous machines, but they will be faster than unaided humans, and potentially more accurate than either.

In the Cold War, Murray recalled, tank gunners trained on flash cards of NATO and Warsaw Pact equipment. When a young soldier identified friend or foe correctly 80 percent of the time, they were deemed battle-ready. After decades of AI advances, “we have algorithms today on platforms we’re experimenting with that can get to about 98.8 percent accuracy,” he said, “so actually artificial intelligence has the ability to make us more safe and make better decisions.”

But, “that algorithm just makes a recommendation,” Murray emphasized. “The trigger pull is up to that kid behind the cannon.”

The hard part, though, is getting soldiers to trust the AI enough to use it in combat– but not enough to mindlessly click “okay” to the computer’s every recommendation, a potentially deadly phenomenon known as automation bias.

* The Supreme Court may soon hear a case involving a high school cheerleader’s Snapchat rant. Really hope the justices find a way to quote the movie Bring it On… [Washington Post]

* Reddit is facing a lawsuit for failing to remove child sexual abuse materials. [Verge]

* A former lawyer has published a memoir detailing some of the ugly parts of the legal profession she witnessed during her career. [New York Post]

* A lawsuit may soon reveal who the inventor of Bitcoin really is. [CNBC]

* A disgraced South Jersey lawyer is accused of gambling away around $2.4 million he conned from investors in a scheme involving fake Eagles tickets. This New Jersey lawyer should be doubly shamed for seemingly not supporting the Giants… [Daily Voice]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

* The Supreme Court may soon hear a case involving a high school cheerleader’s Snapchat rant. Really hope the justices find a way to quote the movie Bring it On… [Washington Post]

* Reddit is facing a lawsuit for failing to remove child sexual abuse materials. [Verge]

* A former lawyer has published a memoir detailing some of the ugly parts of the legal profession she witnessed during her career. [New York Post]

* A lawsuit may soon reveal who the inventor of Bitcoin really is. [CNBC]

* A disgraced South Jersey lawyer is accused of gambling away around $2.4 million he conned from investors in a scheme involving fake Eagles tickets. This New Jersey lawyer should be doubly shamed for seemingly not supporting the Giants… [Daily Voice]

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected for ALM’s Am Law 100 ranking, by what percentage on average did the 100 highest-grossing law firms increase their gross revenue in 2020?

Hint: In 2019 average gross revenue was up 5 percent, and 2020 was an even more successful year for Biglaw.

See the answer on the next page.

Crypto mining is hurting our ability to combat climate change and its impacts. Meanwhile, investors, including those that market themselves as part of a green future, have ignored crypto’s growing carbon footprint. Unsurprisingly, the lack of government oversight has also let the crypto industry grow without any meaningful guidance. And now, as the crypto community’s upcoming Crypto Climate Accord evinces, the slow pace of government and its inattentive policymakers have led to serious climate costs that we are already paying for.

Bitcoin, which uses a “proof of work” mechanism, is a dirty business. According to the Cambridge Centre for Alternative Finance (CCAF), if Bitcoin were a country, its estimated electricity consumption would be comparable to the Netherlands, New Zealand, or Argentina. Unfortunately, all signs like the rising value of tokens indicate that Bitcoin will use even greater energy over the next few years. As the CCAF’s Michel Rauchs explained, “It is really by design that Bitcoin consumes that much electricity. This is not something that will change in the future unless the Bitcoin price is going to significantly go down.”

The crypto community, however, asserts that energy use is not necessarily bad. The community argues, for example, that sending and storing emails also uses tremendous energy. But the community’s counterargument misses the obvious point, that email communication has a value to society at large while crypto, as of now, does not.

Tellingly, crypto’s climate costs have not deterred investors who have rushed to capitalize on the pivot to ESG investments and finance green businesses. Recently, Tesla, which has built a brand on zero-emission cars, purchased Bitcoins for its corporate treasury. Venmo, the popular payment transfer app, will now allow its customers to buy cryptocurrencies on its platform. We should not expect corporate America, even those with a “green” ethos, to manage their addiction to speculative finance.

Just as we did not trust Exxon to regulate itself, we should not trust the crypto community. The Crypto Climate Accord, which describes itself as “inspired by the Paris Climate Agreement,” is a private sector-led initiative focused on decarbonizing the cryptocurrency industry. The accord aspires to enable all of the world’s crypto technologies with 100% renewables. In a world where we still must compete for renewable energy, governments, not the crypto community, should decide whether we want to prioritize renewables for powering cities or for mining more bitcoins.

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